A new spin on preliminary injunctions – Trademark holders now face a tougher standard

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Abstract: The federal appeals court recently held that a trademark owner seeking a preliminary injunction against an alleged infringer must first show that it will suffer irreparable harm in the absence of an injunction. This holding will stand even if the owner has already established a likelihood of succeeding on its infringement claim. Although the decision reverses long-standing precedent, it wasn’t totally unexpected after recent rulings by the U.S. Supreme Court. This article examines the arguments in this case involving the name of a ’50s vocal group. Although the ruling favored the defendant, a sidebar notes that the court did reject the latter’s claim that the plaintiff had abandoned the trademark. Herb Reed Enterprises, LLC v. Florida Entertainment Mgmt., No. 12-16868, Dec. 2, 2013 (9th Cir.) eBay Inc. v. MercExchange, L.L.C., No. 05-130, May 15, 2006 (U.S. Supreme Court) Winter v. Natural Resources Defense Council, Inc., No. 07-1239, Nov. 12, 2008 (U.S. Supreme Court)